State v. Wood

• Decision Date: 08 November 1977
• Docket Number: No. 37036,37036
• Citation: State v. Wood, 559 S.W.2d 268 (Mo. App. 1977)
• Parties: STATE of Missouri, Respondent, v. Paul Albert WOOD, Appellant. . Louis District
• Court: Missouri Court of Appeals

Page 268

559 S.W.2d 268

STATE of Missouri, Respondent, v. Paul Albert WOOD, Appellant.

No. 37036.

Missouri Court of Appeals, St. Louis District.

Nov. 8, 1977.

Motion for Rehearing and/or Transfer Denied Dec. 16, 1977.

Application to Transfer Denied Jan. 9, 1978. ^*

Lester W. Duggan, Jr., St. Charles, for appellant.

John C. Danforth, Atty. Gen., Preston Dean, W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, Keith M. Sutherland, Pros. Atty., Warren County, Warrenton, for respondent.

ALBERT L. RENDLEN, Special Judge.

Paul Albert Wood, Jr. appeals his conviction of murder in the first degree for which he was sentenced to life imprisonment. As grounds for reversal, defendant contends the trial court erred: (1) by admitting evidence of defendant's statement (confession) made following a warrantless, unlawful arrest in violation of defendant's rights to remain silent and to assistance of counsel, (2) by admission of evidence obtained as the result of the unlawfully procured statement, (3) in failing to impose sanctions for the state's refusal to comply with discovery rules, (4) by improperly proceeding with a panel of only twenty-four veniremen and (5) because the evidence, absent testimony of defendant's confession and evidence procured thereby, was insufficient for submission. We reverse and remand.

Barbara Crabtree, employed at the J. C. Penney store in Washington, Missouri, on July 30, 1974 left for lunch and without explanation failed to return. That afternoon a slip of paper bearing defendant's St. Louis address and phone number was inexplicably found pinned to Mrs. Crabtree's key hanging from her locker at the Penney store. Two and one-half days after her disappearance, at about 7:20 p. m. on August 1, Deputy Sheriff Cope of Warren County was summoned to a location just north of the Highway 47 Missouri River bridge in the southern part of the county. Going there with information that two men would be waiting and that a body had been discovered, Cope found defendant with a Mr. Schwartz, ¹ at the entrance of a roadway leading from the main highway. Defendant led him on foot to a nearby wooded area where he was shown the deteriorating body of Barbara Crabtree with a red string type nylon cord tied around her neck.

Calling for assistance, Cope was joined by officers of the Warren County Sheriff's Office and the Missouri Highway Patrol. Shortly after arriving at the scene another officer, Lt. Malone of the Washington, Missouri Police Department, gave Cope the hand written "note" from Barbara Crabtree's locker with defendant's name and address. ² Possessed of the note and knowledge concerning its significance, Cope confronted Wood with this information and inquired if he had previously known or seen the victim. At first Wood denied having known her and then stated he had not seen her for several years. Acting on these facts, Deputy Cope arrested defendant "for investigation of murder." We find such facts, together with the reasonable inferences therefrom, were sufficient "to warrant a man of reasonable caution in the belief that an offense (had) been or is being committed," State v. Wiley, 522 S.W.2d 281 (Mo. banc 1975), and that the person to be arrested was the offender. Carroll v. United States, 267 U.S. 132, 161, 45 S.Ct. 280, 69 L.Ed. 543 (1925). See also Brinegar v. United States, 338 U.S. 160, 175, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). The evidence sufficiently supported the trial court's determination of probable cause for the arrest.

Immediately following the arrest Cope gave the prescribed Miranda warnings. Thereafter, assisted by other officers arriving during the night, Cope interrogated defendant at the scene until about 2:45 the following morning, when he and Sgt. Petruss of the State Highway Patrol took defendant to the Warren County jail. About the same time defendant's automobile was towed from the scene to the jail in Warrenton. Petruss and Cope continued the interrogation as defendant had made no admissions expressly involving himself in the crime. At approximately 3:10 a. m. they handed Wood a typed form (later state's exhibit # 2) containing a written waiver of his rights to remain silent or to have an attorney and by which he would have agreed to further questioning. Reading the form, defendant apparently had second thoughts concerning further interrogation without counsel. He refused to sign the waiver and instead initialed the form and wrote the word "refused" near his initials. In addition, defendant stated he was unwilling to answer further questions until he had an attorney. The officers, ignoring his protestations, continued the questioning. Testimony, developed in the hearing on the motion to suppress concerning the continuing interrogation at the Warren County jail, was as follows:

"Q. And then someone asked him some questions after he refused to waive his rights?

A. Yes, sir.

Q. Who was that?

A. Sgt. Mudd and Sgt. Wheeler and Sheriff Twiehaus. (Sgts. Mudd and Wheeler were members of the Highway Patrol who had arrived and Sheriff Twiehaus was the Sheriff of Warren County.)

Q. And were they all present in one room at the time they were asking him these questions?

A. We have a divided office there, but we were all within sight of each other.

Q. Was this upstairs?

A. No, sir, downstairs.

Q. Downstairs, all right. Then how long did this questioning go on there in the vicinity of 3:15 a. m.?

A. Just a very short time because he refused to answer.

Q. All right. But the questions were continued to be asked of him?

A. Yes uh-huh.

Q. About the crime?

A. Yes, sir.

Q. Is that correct?

A. Yes, sir.

Q. All right. And he continued to refuse to answer those questions?

A. Yes, sir. " (Emphasis supplied.)

Later the questioning ceased and at about 4:00 a. m., either Sgt. Mudd or the Sheriff resumed conversation with defendant, requesting that he sign written consent forms to search his car and home. He did so at 4:10 a. m. An immediate search of defendant's car produced nothing except a brown paper sack containing a sandwich and a bag of Doritos, not shown to be connected with the crime. About 8:00 a. m. officers searched his room in St. Louis, but no incriminating evidence was discovered. Sometime near 4:15 a. m. defendant was put in a cell, remaining there until 7:00 a. m. During that period he may have slept briefly. However, he was dressed and awake at 6:55 a. m. when Deputy Cope returned to take him from the Warren County jail to the Missouri Highway Patrol Troop C Headquarters at Kirkwood for further interrogation. Cope, when testifying to these matters, was not sure if defendant had undressed or slept at any time during the night, but stated the only food or drink given defendant during this period was a candy bar and possibly a Coke or some coffee.

Wood was delivered to Troop C Headquarters at about 8:00 a. m. and, after a wait in the lobby under guard, was placed in a holdover cell until approximately 11:00 a. m. Sometime during the morning, he was taken to a room "where he had agreed to take a polygraph test." An armed lieutenant of the Highway Patrol conducted a polygraph examination while three armed officers waited outside the room. Before the polygraph was given, Miranda or similar warnings were again read and though defendant submitted to the examination he denied connection with the crime. At the conclusion of the polygraph Sgt. Mudd continued the interrogation and sometime between noon and 1:00 p. m. Mudd told defendant he had better "come clean" because the officers had other evidence. At that time, seventeen hours after questioning began, appellant signed a pretyped form waiving his rights to counsel and to remain silent. Three and one-half hours of questioning by Mudd and Sheriff Twiehaus followed, during which defendant confessed the crime. The statement was dictated, typed, and put before defendant who read and signed it. The statement contains a detailed confession of his guilt in the strangulation death of Barbara Crabtree.

Later that day, Sgt. Mudd and Sheriff Twiehaus, with new information obtained from defendant during the "confession," returned to defendant's residence and found the victim's purse in a trunk in the basement and a thermos bottle, having the appearance of one owned by the victim, in a kitchen cupboard.

On Sunday, August 4, Twiehaus and Mudd took Wood to the place of the crime and he directed them to a beer can containing the victim's necklace not far from where the body was found. The next day defendant requested and was allowed to speak to the prosecuting attorney of Warren County and was again given a waiver to sign in the same form as that submitted to him at 3:15 a. m. on August 2, except that of August 5 contained an additional statement that Wood had been "advised of the above rights prior to making my statement on August 2, 1974, at 2:00 p. m. at Troop C Headquarters, Kirkwood, Missouri."

Overruling defendant's motion to suppress, the trial court found the confession was not taken in deprivation of any constitutional right and the items obtained from defendant's car and residence were products of permissible searches performed with the voluntary consent of defendant. Defendant contends his confession was obtained in violation of his rights under the Missouri Constitution, Art. I, §§ 15, 18(a) and 19, and of amendments IV, V, VI and XIV of the United States Constitution and particularly his rights to remain silent following arrest and for assistance of counsel. He points to the interpretation of the Fifth Amendment to the United States Constitution in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as the same has found application in Missouri by State v. Stevenson, 523 S.W.2d 349 (Mo.App.1975).

We conclude that defendant submitted voluntarily to interrogation from 7:20 on the evening of July 30 until 3:15 the following morning. At that time he refused to further waive his rights and evidenced this...